88 FEBERAL REPORTER.
Its bl,ll of Interpleader In the Oalifornla state court, tendering and offerIng to 'pay the proceeds thereot into coutt; that the proceeds of both policies are vIrtu.lI1ly in' the hands of under the control of Hubbard, and that the ouly\}uestlon to be litigated'and settled is as to whom he shall pay them out to and 'how.. We contend that'under the coJitraets set out In and exhibited with' the blll that he should 'first pay himself such sums as he has advanced to the Meades out of the primary fund that he holds as security, to wit, the proceeds of the $20,000 policy; that the balance he stlould pay to Mrs. Meade or' her successor In: interest, Mrs. 'Cross, and that he should pay over the 'rhole of proceeds of the '$15,000 pollcy to plalntiff as the legal representatIve of Meade, and the equitable owner thereof,"
NOW,ifit be conceded-which, however, I do not decide-that the :proceeds of the $20,000 policy 'were contemplated by the parties to the contracts hereinbefore mentionell'as the primary fund out of which Hubbard should be paid, still complainant's argument is unsound, for the reason that Hubbard hasn.ot yet realized on that policy. Its pay· ment is suspended, at the instance of the insurance company, by a ,bill of interpl'eader pending in the state court. If Hubbard should fail, withOut fault on his' part, ,to realize on said policy, he could un· questionably, and according to complainant's own theory, resort to the $15,000: policy, since he holds both policies as collaterals. How is it possible to make a decree in the present suit fully covering these equities, ,wben this court has no control Whatever over the $20,000 policy or its proceeds? Taking the most favorable view of the case for complainant which the allegations of his bill will allow, Hubbard holds the policy sued on in the common-law action as collateral se· cUrity for lawful advances made by him to the Meades, and it is his right and duty to forthwith collect the amount due on said policy, ap· 'plying a sufficiency of the proceeds to the payment of his own debt, and holding the balance for the parties equitably entitled thereto. "ShOllld he fail to pay over such balance, said parties will then have adequate remedies against him.' The demurrer will be sustained.
PREFERRED ACC. IKS. CO., OF NEW YORK, v. BARKER. (Circuit Court at Appeals, Fifth Circuit. April 12, 1898.) No. 686.
JURISDICTION OF FEDERAL COURTS-AVERMENTS OF CITIZENSHIP-AMENDMENT ON ApPEAl,:
A petition which avers the residence at the parties only cannot be amended on appeal so as to show citizenship; but the judgment may be reversed, and the cause remanded, with Instructions to dismiss the SUit, unless, by proper amendment below, diverse citizenship is made to appear. l
In Error to the Circuit Court of the United States for the Eastern District of Louisiana. .
This was an action at law brought by Harriet Barker against the Preferred Accident Insurance COll1pany, of New York, to recover on a polley of accident insurance. In the circuit court, verdict and judgment were given for plalntlfl', and the defendant sued out thIs wrIt of error. The case Is heard here on mol As to "Necessity for Averment of CItizenship," see note to Shipp v. Wllliama, 10 C. C. A·. 261, and supplementary Dote to Mason v. DuIlagham, 27 C. O. A.. 803.
TRUST &: SAFE-DEP. CO. V.NORFOLK &: W. R. CO.
tlon of counsel for the for leave to amend the ·petltfPIl by inserting certain allegation$ in respect to the citizenship of the parties. . The averments of the petition in this' regard were as' fol1bws: "The petition of Harriet Barker, widow of J. W. Barker, who resides in the city of New Orleans, respectfully represents: That the Preferred Accidllntilnsurance Company, of N.ew York, a corporation organized under the laws of, the state of New York, and domicUed in the city of New York, but here present In this district by an agent,-Franke Watson,-who is authorized to accept service of legal process, and to stand in judgment for Sliid corporation, rs required by the constitution and laws of the state of Louisiana, is legally and justIl' indebted," etc.
Hewes T. Gurley, for plaintiff in error. S. Wolff, for defendant in error. ;Before, PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District 'Judge. PER CURIAM. The motion of counsel for defendant in error for leave to amend the petition filed in the court below by inserting that the plaintiff below was at the time that this suit was instituted, andis now, a citizen of the state of Louisiana, and the defendant was at that time, and is now, a citizen of the state of New York, is denied. The amendment proposed is one of substance, and presents an iSliluable fact, which cannot be traversed in this court. The motion presented is a confession of error; and as, upon an inspection of the record, the jurisdiction of the circuit court does not appear, it is ordered and adjudged that the judgment of the circuit court be, and the same is, reversed, and the cause is remanded, with instructions to dismiss the suit, unless, by a proper amendment, the jurisdiction of the circuit court shall be made to appear.
FIDELITY INSURANCE. TRUST & SAFE-DEPOSIT CO. W. R. co. (Circuit Court, W. D. Virginia. 1.
July 2, 1898.)
RAILROAD RECEIVERS-l<'ORECLOSURE-:r'RANSFER TO PURCHASER-LIABILITY FOR
A foreclosure decree provided that the purchasers should be let Into possession on the execution and delivery of deeds by the special masters making the sale, and that they should take the property subject to all liabilities incuned by the receivers, which liabilities should be detel1llined and enforced by the court ordering the sale. The receivers In fact remained in possession for six days after delivery of the deeds, during which period a liability arose for negligent operation of the road. Held, that the delivery of the deeds did not, in law, effect an immediate transfer of possession, so as to make the purchasers directly responsible for such negligence, nor could the receivers be considered as operating the road as their agents, but that such liability was one arising dUring the receivership, which could only be enforced by the federal court under the terms of the decree.
JURISDICTION OF FEDERAL COURT-ENJOINING PROCEEDINGS IN STATE COURT.
Where a federal court by Its decree of sale retains jurisdiction of a foreclosure proceeding so far as to detel1lline and enforce, against the property sold, claims for liability Incurred by the receivers, it may enjoin the prosecutioll of an action on such a claim in a state court without violating Rev. St. § 720,:which inhibits granting an injullction to stay proceedlD.gs 111 a state court.